Flagg v. Chicago Great Western Ry. Co.

• Decision Date: 19 June 1944
• Docket Number: No. 12790.,12790.
• Parties: FLAGG v. CHICAGO GREAT WESTERN RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

143 F.2d 90 (1944)

FLAGG v. CHICAGO GREAT WESTERN RY. CO.

No. 12790.

Circuit Court of Appeals, Eighth Circuit.

June 19, 1944.

COPYRIGHT MATERIAL OMITTED

Frank E. McAllister, of St. Paul, Minn. (Stacker & Stacker, of St. Paul, Minn., on the brief), for appellant.

Harry S. Stearns, of St. Paul, Minn. (Harry S. Stearns, Jr., and Michael N. Lyons, Jr., both of St. Paul, Minn., on the brief), for appellee.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

In an action for damages for the wrongful death of her deceased husband, plaintiff, as special administratrix, appeals from a judgment entered upon a verdict directed for the defendant.

The accident in which plaintiff's decedent was killed occurred at a crossing in the country when an automobile driven by the decedent ran into the side of a moving train. The verdict was directed upon motion of the defendant made at the conclusion of plaintiff's testimony, on the grounds (1) that no actionable negligence of defendant was shown and (2) that the evidence established contributory negligence of the decedent as a matter of law.

In reviewing the evidence to determine whether the court erred in so directing a verdict, it is elementary that we must accept as true the evidence favorable to the plaintiff and accord her the benefit of all reasonable inferences which may be drawn therefrom. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Johnson v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115, 118; Champlin Refining Co. v. Walker, 8 Cir., 113 F.2d 844, 846.

The collision occurred about 3 o'clock in the morning of October 11, 1941, at the intersection of the defendant's double track railroad and a loose-graveled county highway near Eden, Minnesota. At that point the tracks run in a north-south direction and the highway crosses them at right angles running from east to west. The decedent Flagg was driving the automobile. He and two companions, his cousin R. L. Campbell sitting next to the driver and one Cornwell on the right hand side, all in the front seat, were going west from Mantonville to West Concord. The decedent did not know the exact road over which they were traveling and Campbell directed him.

Campbell was the only eye witness called to testify at the trial. He testified that as they approached the crossing they were traveling at a speed of approximately 35 miles per hour. The car was in good mechanical condition with respect to brakes and lights. At the speed they were moving the car could have been stopped in about 60 feet. With the aid of the lights one could see 100 feet or more ahead of the automobile. The night was cool, calm and dark. Campbell knew they might be coming to a railroad crossing, but he did not know its exact location.

When they were 40 or 50 feet from the tracks they suddenly observed a cloud of black smoke in front of them, which smoke came from the engine and completely obscured the train. The decedent applied the brakes and the car skidded. They passed through the smoke and saw a freight train moving slowly south, 20 or 25 feet ahead on the east track. About a second after emerging from the smoke the automobile struck the twenty-second car from the locomotive, and the decedent was injured and died immediately. The locomotive was then approximately 800 feet south of the crossing.

The exhibits disclose that the railroad is elevated somewhat above the level of the prairie at the point of the crossing and that the highway rises a few feet, apparently on an inclined grade on each side of the tracks.

The accident and the injury having occurred in Minnesota, the rights, duties and liabilities of the parties must be determined under the laws of that state. Duluth, W. & Pac. Ry. Co. v. Zuck, 8 Cir., 119 F.2d 74, 76; Champlin Refining Co. v. Walker, supra.

The legislature of Minnesota has provided that every railroad engineer shall ring the bell or sound the whistle at every road or street crossing on the same level as the tracks, except in cities. Mason's Minn. Stat.1927, § 10263. Section 4733 requires railroads to maintain signs at every public road crossing; and § 4743-2 provides that the Railroad and Warehouse Commission shall adopt and prescribe uniform warning signs for use at grade crossings.

The Supreme Court of Minnesota has declared that statutory signals for trains approaching a highway crossing are solely for the benefit of travelers on the highway; that they are immaterial when and where the train is actually upon and occupying the crossing when the traveler arrives; and that signals and warnings are not required for the purpose of preventing automobile drivers from running into the sides of trains. For drivers whose cars are properly equipped with lights and who exercise ordinary care a train upon a crossing is itself effective and adequate warning, whether the train is moving or standing still. Crosby v. Great Northern Ry. Co., 187 Minn. 263, 245 N.W. 31; Ausen v. Minneapolis, St. P. & S. S. M. Ry. Co., 193 Minn. 316, 258 N.W. 511; Sullivan v. Boone, 205 Minn. 437, 286 N.W. 350, 352.

The Supreme Court of Minnesota has also held that when the facts and circumstances are so unusual and hazardous as to render a crossing an exceptional or an unusually dangerous one requiring precautions in addition to those prescribed by law it is for a jury to say whether the railroad company has taken precautions commensurate with the existing conditions. Licha v. Northern Pac. Ry. Co., 201 Minn. 427, 276 N.W. 813; Crosby v. Great Northern Ry. Co., supra; Massmann v. Great Northern Ry. Co., 204 Minn. 170, 282 N.W. 815; Willet v. Great Northern Ry. Co., 154 Minn. 10, 191 N.W. 260; Munkel v. Chicago, M., St. P. & P. R. Co., 202 Minn. 264, 278 N.W. 41.

On the issue of the alleged negligence of the defendant, the plaintiff contends that the evidence was sufficient to require the submission of the case to the jury in that (1) (a) no statutory signals were given, that is, neither the bell was rung nor the whistle sounded, and (b) there were no "stop" or other warning signs along the highway east of the crossing, as prescribed by the commission; and (2) that two unusual circumstances, namely (a) the smoke emanating from the engine and (b) the incline in the highway east of the tracks, required the defendant to give some warning of the presence of the train on the crossing, in addition to the statutory signals.

Tested by the decisions of the Supreme Court of Minnesota, these contentions are without merit. Since defendant's train was actually upon and occupying the crossing when plaintiff's decedent arrived the statutory signals are immaterial. The train itself was effective and adequate warning. Crosby v. Great Northern Ry. Co., supra. The burden was upon the plaintiff to prove negligence, and Campbell, the single witness to surrounding conditions, testified only that he did not hear a whistle or a bell and that...